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Monday, 1 December 2008
Page: 11830

Mr SYMON (10:59 AM) —It is with great pleasure that I rise to speak in support of the Fair Work Bill 2008. This bill delivers on the promise that Labor took to the people at the 2007 election, when we promised to rip up Work Choices if elected, in our policy statement Forward with Fairness. Work Choices was foisted on the Australian people by John Howard and many Liberal Party members who remain in parliament to this day—former workplace relations ministers such as the member for Warringah, the member for Menzies and the member for North Sydney. And how could we forget the member for Higgins smirking away as he voted to rip off working people’s wages and conditions? These people got to vote on Work Choices; the Australian people did not get their chance until two years later. That is the gist of this story. Work Choices was not mentioned by the coalition at the 2004 election. There was not a single word about ripping off workers’ rights and conditions—no safety net, no rights at work, no cooperation in the workplace to take the nation forward. The ACTU Your Rights at Work campaign, however, made sure that this did not occur in silent acceptance. On national TV and in electorate after electorate, the Your Rights at Work team made sure the public knew what had been done to them by the Howard government and rightly called for a change. Today, just over a year on from our election, the Rudd government are delivering these promises to the Australian people.

The essential points of the Fair Work Bill are based upon the principles of fairness. The bill balances the interests of employers and employees and the granting of rights and the imposition of responsibilities in various industrial instruments. Most importantly, the Fair Work Bill delivers a fair and comprehensive safety net of minimum employment conditions that cannot be stripped away. These protections start with the National Employment Standards, which provide minimum standards for all employees. Unlike Work Choices, which only provided five minimum standards, the minimum standards in the NES relate to maximum weekly hours, requests for flexible working arrangements, parental leave and related entitlements, annual leave, personal leave, carers leave and compassionate leave, community service leave, long-service leave, public holidays, notice of termination and redundancy pay. The second part of the safety net is the modern award. Modern awards are currently being developed by the Australian Industrial Relations Commission for employees on less than $100,000 a year indexed. Modern awards will build on the National Employment Standards and will cover a further 10 subject areas, including minimum wages, arrangements for when work is performed, overtime and penalty rates, allowances, leave and leave loadings, superannuation and, importantly, procedures for consultation, dispute resolution and the representation of employees.

The Fair Work Bill guarantees a safety net of fair, relevant and, very importantly, enforceable minimum terms and conditions for Australian workers. These minimum terms and conditions can no longer be undermined by the making of statutory individual employment agreements, such as the much hated Australian workplace agreements that many employees were forced to sign as a condition of acceptance for a job offer. Who can forget the case of the Spotlight workers, whose wages and conditions were ripped off under the Liberals’ AWAs by the enormous sum of 2c per hour, or the stories of video store workers losing their protected conditions in exchange for one free video rental per week. We heard stories about service station attendants losing their accrued entitlements because a transfer of business to another employer meant they were left in the lurch and got zero. Work Choices ripped off conditions and stole wages out of the pockets of those workers who could least afford it. The Fair Work Bill provides for minimum wages in modern awards to be reviewed every year by a specialist minimum wage panel within Fair Work Australia. The minimum wages in modern awards will override any lower rates in an enterprise agreement, with the effect that, if an enterprise agreement is entered into and an award manages to take it over in pay scales, then the rates will follow that award. Fair Work Australia will also be required to make a national minimum wage order to provide minimum wages for all award-free employees.

The collective bargaining arrangements contained in this bill are a great step forward for working people. By simplifying access to agreement making, many more workers will be able to move above the safety net minimums. With the safety net of the National Employment Standards and modern awards that provide a floor for collective bargaining, there are many opportunities for both employees and employers to improve productivity and wage outcomes. There is significant evidence that enterprise bargaining benefits employees, employers and the economy, and I, for one, would like to see more Australians benefit from it. In particular, I would like to take note of the good faith bargaining provisions that allow Fair Work Australia to make orders to ensure compliance with the good faith bargaining requirements. Firstly, the bill provides that, where an employer refuses to bargain with its employees, an employee bargaining representative, such as a union, can ask Fair Work Australia to determine if there is majority employee support for negotiating an enterprise agreement. If so, the employer will be required to bargain collectively with its employees in good faith.

Good faith bargaining requires that bargaining representatives for a proposed enterprise agreement must meet. That does not sound all that hard. This would include attending and participating in meetings at reasonable times. Again, you would think that would be a very easy process. This process also includes disclosing relevant information and responding to proposals on the table—again, a very reasonable process. Importantly, it is about giving genuine consideration to the proposals of others and giving reasons for responses to those proposals. Good faith bargaining also requires parties to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining. If Fair Work Australia issues a good faith bargaining order which is ignored by a bargaining party, the other party may apply to Fair Work Australia to intervene in the dispute and make a workplace determination. There are also provisions in the bill to cover multiemployer bargaining. Where employees and employers genuinely wish to bargain on a multiemployer basis, they will be free to do so. But, unlike the more common single-employer enterprise agreement, protected industrial action and good faith bargaining orders are not available in these circumstances. There are many situations where multiemployer bargaining already operates in a de facto form, and this worthwhile change reflects the current reality.

Significantly, the Fair Work Bill provides a special new stream of bargaining for low-paid employees in industries such as child care, community work, security and contract cleaning. There will now be the possibility of a workplace determination in the low-paid stream in two circumstances: (1) by agreement between the parties or (2) if there is no reasonable prospect of an agreement being made. If there is no reasonable prospect of such an agreement being made, access to a workplace determination is subject to strict criteria, including that there is no enterprise agreement in place and that the employment conditions of the employees are substantially the same as those in the safety net.

All matters pertaining to the relationship between the employer and its employees, as well as to the relationship between the employer and a union representing those employees, will now be able to be the subject of bargaining. Agreements can also deal with the deduction of wages for any purpose authorised by the employee and contain terms dealing with how the agreement will operate. This means salary sacrifice and payroll deduction arrangements can be formally included in agreements, and it also allows for terms that set out how the parties agree to conduct negotiations for a replacement agreement.

The Fair Work Bill also greatly enhances dispute settlement provisions within agreements. To assist the parties in dispute settlement, Fair Work Australia will be able to exercise broad conciliation powers at the request of just one of the parties. If the parties have bargained in good faith, they will be able to walk away without having a settlement imposed on them. Where the parties agree, Fair Work Australia may also make a binding determination on the matters in dispute. In the limited circumstances where protected industrial action is occurring in a bargaining context that has a particularly negative or dangerous impact, scope will be provided for Fair Work Australia to resolve these disputes by making a workplace determination.

A new ground for Fair Work Australia will be the making of a workplace determination where protracted industrial action is causing significant economic harm to the bargaining participants or where such harm is imminent. This is only intended to apply to the small number of disputes where industrial action continues for an extended period and where the employees and the employer suffer greatly and yet the parties are so locked into their positions that there is no hope of a breakthrough in negotiations. Disputes like that that spring to mind quite readily include the Boeing dispute of recent times, where there were many workers locked out, and also the Smorgon dispute of a few years ago, which also dragged on for a particularly long time and where the Industrial Relations Commission was pretty much prevented from coming to a resolution on the process because both parties would not agree that the dispute should go to the commission.

I also highlight the section of the bill titled ‘general protections’, which incorporates the current provisions relating to freedom of association, unlawful termination and other miscellaneous protections into one section. The Fair Work Bill’s general protections ensure that employees remain free to choose to be represented by a union and, significantly, provide more comprehensive protections for those participating in collective activities such as representing other employees or bargaining. This is particularly important in the area of workplace rights as it allows an employee to make a complaint or inquiry without fear of sanction from an employer. These rights will also apply to prospective employees, and sanctions will be available where a person takes adverse action because someone exercises one of those rights. Importantly, employees with carers responsibilities will also now be protected from discriminatory treatment if they are attempting to access a workplace right such as the use of carers leave entitlements.

Under the Liberals’ Work Choices, employees in any business with up to 100 workers could be dismissed for any reason or for absolutely no reason at all, without any rights to challenge the dismissal. As we well know, this unjust law was pushed through parliament as soon as the Howard government gained a majority in both houses. It is well worth remembering that Work Choices is still here right now, still ripping off workers’ rights and conditions such as unfair dismissal every day. Even in businesses with more than 100 workers, many employees are denied unfair dismissal rights because Work Choices exempts employees dismissed for genuine operational reasons. Short-term casual employees, fixed term trainees—there is a whole list of them—do not necessarily get those rights, even in a large business.

Abolishing the Liberals’ 100-employee exemption and replacing it with the six-month and 12-month provisions of the Fair Work Bill will allow an estimated 6.7 million employees to access unfair dismissal provisions. That is around 80 per cent of all employees and compares with a figure of 3.7 million—that is, 44 per cent—of employees who currently have access to unfair dismissal provisions. The Fair Work Bill provides a new scheme of unfair dismissal protections to ensure good employees are protected from being dismissed unfairly. Employees of a small business with fewer than 15 employees will be able to claim for unfair dismissal after they have served a qualifying period of 12 months, whilst for larger businesses the qualifying period is six months. The Liberals’ ‘operational reasons’ will no longer be a defence to a claim of unfair dismissal as it is to this very day under the Liberal Party’s Work Choices. A dismissal will not be regarded as unfair if it is for reasons of genuine redundancy.

There are of course many other areas in the Fair Work Bill where vast improvements have been made on the failed workplace relations system that is Work Choices. One of these areas is right of entry for unions to hold discussions with members or potential members in the workplace. This right can no longer be stripped away by an AWA or non-union agreement, as Work Choices allows. Another area is the removal of the reverse onus of proof in relation to industrial action, which currently requires employees to prove the workplace is unsafe, rather than requiring the employer to prove that the workplace is safe. As a basic OH&S principle, all employers should be able to prove that their workplace is safe.

The Leader of the Opposition put out a press release last week that said Work Choices is dead and the member for Boothby repeated that line in the House this morning, but I ask the question: how long for? We have seen time after time the Liberal and the National parties vote to keep Work Choices alive in the past. What has changed now? I proudly commend the Fair Work Bill to the House.